Agencies slow to release private emails

Some say public business can be kept secret on personal accounts

Many Americans use their personal emails from Yahoo or Cox or other providers in their daily work lives, not just for private matters. But what about public employees?

If they send a Gmail about a pothole or a tax hike, does that become a public record? Many agencies rely on legal reasoning to say no, even though the law includes emails in the definition of public records, “regardless of physical form or characteristics.”

To mark Sunshine Week, a national transparency initiative, U-T Watchdog asked more than 100 government administrators across the region to hand over a sampling of personal emails discussing the public’s business.

Two administrators have done so, the heads of Grossmont Healthcare District and the city of Lemon Grove. Others have said the records don’t exist, the public has no right to see them or they have not responded at all.

Correction

This story has been amended from its original, which incorrectly said only one administrator provided a personal email addressing public business.

San Diego law firm Stutz Artiano Shinoff and Holtz — which represents 40 of the county’s 42 school districts — maintains such emails aren’t subject to the California Public Records Act “because the district does not have actual or constructive possession over any such private account.”

He cites an April 2012 California 5th District Court of Appeal decision which said the City of Selma in Fresno County did not have possession of its subconsultants’ emails, and therefore did not need to release them.

“We interpret ‘possession’ to mean both actual and constructive possession,” the decision said. “For purposes of this statute, we conclude an agency has constructive possession of records if it has the right to control the records, either directly or through another person.”

Never
55% (57)

Rarely
32% (33)

Sometimes
4% (4)

Often
9% (9)

103 total votes.

Unlike that case, the Watchdog survey asked for emails sent to and from the top executive of each local government agency. Another judge recently ruled those are public.

“A communication relating to the conduct of the public’s business that is maintained on the private accounts of city officers reasonably falls within the definition of a record ‘retained’ by the city,” wrote Judge James P. Kleinberg in a March 2013 decision in Santa Clara County Superior Court involving city officials’ text messages and emails.

The judge reasoned that San Jose officials are an extension of the public agency and the agency could “require City Council members and their staff to disclose such communications.”

Document

San Diego seems to be making similar argument. In its March 14 response to the Watchdog’s request for Mayor Kevin Faulconer’s personal emails pertaining to public business, city officials first said, “The city does not have any responsive public records.”

Asked for clarification, Karen DeCrescenzo, senior human resources officer, wrote in a March 20 email, “You were provided all responsive ‘public records’ that were available at the time of the request. This by its nature would exclude personal emails on personal devices.”

The argument for nondisclosure often hinges on the section of the California Public Records Act which says, “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”